Thursday, September 30, 2010

Gonzales and Gonzalez versus DHS

When a federal agency decides to take action against an employee for misconduct, it is usually required to give the employee 30 days' notice, a written statement of the charges, access to any documents the agency relied upon in formulating the charges, and an opportunity to respond to the charges. An agency can suspend or take another adverse action only if the charges of misconduct are sustained after these due process requirements have been satisfied. Any suspension must be for a specific duration, with very rare exceptions. One of these rarities is the “crime exception,” which allows an agency to place an employee on indefinite suspension with only seven days' notice when the agency reasonably believes that the employee has committed a crime for which a sentence of imprisonment could be imposed. For an agency to have “reasonable cause” for an indefinite suspension, there needs to have been:

(1) an indictment; (2) an employee arrested and held for further legal action by a magistrate; (3) an arrest or investigation accompanied by such circumstances showing reasonable cause; (4) a criminal information; and (5) certain egregious acts such as murder or national security offenses, which are detrimental to the agency’s mission, brought to the agency’s attention by the news media.

Gonzales v. Department of the Treasury, 37 M.S.P.R. 589, *5 (Aug. 17, 1988). In other words, if an agency finds out that an employee has been charged with a crime for which imprisonment is a possible penalty, the agency can suspend that employee without pay with one week’s notice, until the employee is convicted, acquitted, or charges are dropped. After the criminal case is resolved, an agency can always decide to propose the removal of the employee based on the alleged criminal conduct, but the unpaid suspension must end when the criminal prosecution is resolved. The employee will get closure, one way or another. Every suspension must have an “ascertainable end,” even if the precise end date is dependent on what happens in court.

We now learn that, during 2008 and 2009, the Department of Homeland Security suspended at least two employees for indefinite periods, not because they had been charged with a crime, but because the agency was investigating whether the employee has done anything to warrant an adverse action. DHS basically made up a new standard saying that indefinite suspensions were permissible whenever an agency “believes that the employee’s retention on active duty could result in damage to federal property, be detrimental to government interest, or be injurious to the employee, his fellow workers, or the public.” Rather than arrests or charges, these suspensions were based on mere allegations of misconduct which were supposedly being investigated by the agency. The agency never actually charged either employee with any misconduct. Meanwhile, the unfortunate employees were trapped in limbo - suspended without pay - while the agency took its time deciding whether to charge them with anything. After the two employees filed appeals with the Merit Systems Protection Board, the Board found that DHS’s new standard violated the employees’ right to due process. In Gonzalez v. DHS, the Board said:

The agency has not identified, and we are unaware of any legal authority establishing that the mere existence of an agency investigation or inquiry into allegations of misconduct constitutes a circumstance justifying, or cause for imposing, a suspension under 5 U.S.C. § 7513.

Gonzalez was issued in July 2010. In Hodge v. DHS, decided in September 2010, the Board reviewed its recent decision in Gonzalez, and then concluded:

The agency in this case imposed an indefinite suspension against the appellant under circumstances virtually identical to those in Gonzalez. As noted above, it based its actions solely on the fact that it was investigating allegations of misconduct by the appellant and it made no determination that the appellant actually engaged in any misconduct. Like the action in Gonzalez, therefore, the appellant’s suspension cannot be sustained.

In each case, the agency was ordered to rescind the suspensions and pay Gonzalez and Hodge for the entire period they had been suspended.

The moral of this story is that, to suspend federal employees for misconduct, an agency must first charge the employee with the misconduct and sustain those charges, OR suspend the employee while criminal charges are pending against him or her. In the absence of sustained agency charges or pending criminal charges, there's simply no legal basis for a suspension of any duration.